The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-08-01
COL. ROBERTSON'S RIGHTS
Atty.-Gen. Michener's Opinion on the
Internationally Contest.
Colonel Robertson Cannot Be Deprived of His
Pay and Title Because Prevented by
USurper Smith from officiating,

has been given by Attorney general Michener
IN reply to questions submitted to him by State
Auditor Carr. The opinion relates directly to
the question as to whether or not Lieutenant
governor Robertson is entitled to pay as Presi-
dent Of the Senate while he was prevented by
usurper Smith and his Democratic supporters
from performing the duties OF the position, but
necessarily it also the validity of his cleo
ton and his title to the Office. The opinion is as
follows:
Hon Bruce Carr. Auditor Of State:
Sir am in receipt of the following from you:
At the November election. 1856, Robert S. Rob-
ertson received votes for the Office of Lieuten
Ant.covernor than any other candidate At the
fves in the presence of both houses of the General
Assembly opened and published the returns of that
election, and declared that Robert s. Robertson had
been duly elected TO the Office of Lieutenant governor
and thereupon he took the oath of Office He then de
Enanded OF the Senate his seat as President or that
body and announced his readiness to act in that
Pacity, but the Senate refused to recognize him
president OF the Senate and denied his right to act
as such. From that time until the final adjourn
ment. he made repeated demands for his seat Pres
tdent OF the Senate but the Senate refused to permit
MIN to discharge the duties of the office although he
was ready and willing to do and it was presided
over by President for the occasion" He has filed
with me his claim for compensation from the time the
Senate first refused permit him to act until the end
of the session Is he entitled to such compensation
short time ago rendered an opinion to the
Secretary OF State, In which held that Robert
S. Robertson was legally elected to the Office of
Lieutenant governor at the general election in
November 1856. and still adhere TO that opinion
In Section 10 of Article of Constitution. it is
provided that the Lieutenant governor shall, by
virtue of his Office, DO President of the Senate"
This fixes the right of the Lieutenant governor
70 be president of the Senate. This right is ab-
solute and indisputable from the time he is de-
clared 10 be the Lieutenant governor until the
end of his term unless he is ousted from the Of
flee by the judgment of the General Assembly
contest of his election, under Section 6 of
Article D OF the Constitution, and Sections 4744-
4746. Revised Statutes, 1881 and other body
tribunal, or court can CONTROL supervise
view its decisions concerning the title to the Of
fee OF ACKNOWLEDGEMENTS. Robertson vs.
State, ex rel. Smith, 100 Indiana. 10 There
was contest Of his election, and his title to
the office of Lieutenant-governori is beyond
question by any of the departments of the State.
In Section 10 of Article of the CONSTITUTION it
is provided that leach house, when assembled,
shall choose its own officers, the President of
the Senate excepted" This exception is signif-
cant. and it makes the conclusion irresistible, as
1t seems to me. that the trainers of the Constitu-
ton did not intend that the Senate should
have the right to elect its own regular President,
or to reject the Lieutenant-governor as it's
President IL the people had intended that the
Senate should have that right, the language of
this exception would not have been incorporated
in the Constitution. The people say, in Sec. 10,
Art. 5, that the acknowledgements STALL by
virtue of his Office, be President of the Senate;
and they say. in Sec. 10, Art a. that the Senate
may choose Its own officers, the President ex-
cepted. Why except the President of the Sem
ate2 Because the people retained the right to
elect that officer in the person of a Lieutenant-
governor. This power resided in the people as
an inherent right, which they might delegate to
the Senate, but unless it delegated by
the people they alone had the right exercise
It, See Cooley Constitutional Limitations,
star pages So, 80 The people did not choose to
deprive themselves of this right by delegatlng it
TO the Senate, but they expressly reserved it by
the use of the language 1 have quoted. 1t is
true that the people gave to the Senate the
power to elect President for the OCCASION in
Sec. ii of Art. s. which is as follows: Whenever
!. the Lieutenant governor shall act Governor.
Or shall be unable to attend as President of the
Senate. the Senate shall elect of
it's members President for the
occasion" This is limit alton the power of
the Senate in the matter of choosing temporary
presiding officer. See Cooley Constitutions :.
Limitations. star pages a. 88, SO. The cleo
tior of a President for the occasion only
take place when the Lieutenant governor is
acting as Governor or is unable to attend
President of the Senate. careful consdera
tion of the sections | have cited will prove that
the people intended that the Lieutenant gov
ernor elected by them should preside the
Senate. without let or hindrance the part OF
that body, unless he was acting Governor
unable to attend 1t is very evident that the
makers OF our Constitution deemed it wise to
limit the power of the Senate in this particular.
and it is not for US to doubt the wisdom of the
people in framing solemn an instrument, but
SC should be our highest aim to guard 1t against
violations and attacks, matter from
whence they may come For the Constitu-
ton OF the State is higher in au-
order made by any body, or any officer assuming
to act under it, since that BODY or officer must
exercise delegated authority. and one that
must necessarily be subservenr to the nstru-
ment by which the delegation is made In any
case of conflict the fundamental law must gov
ern, and the act in conflict with it must be
treated as of nc legal validity" Cooley,
Constitutional Limitations, star page A
1t is q maxim which should always be remem-
bered by officers and legislators that the
ereignty Is in the people, and that the legisla-
lures created by them only to discharge a
trust of which they have been made a deposit
tory, but which has been placed in their hands
with well defined restrictions and limitations,
and they are not at liberty TO take action in op.
position to this fundamental law. Cooley on
Constitutional Limitations, star pages 2S, 81.
We know from the history Of the times that
the Leutenant-go governor was not acting as Cover
nor, and you state that he both willing and
able to act as President of the Senate during the
period you have named, but prevented
from doing so by the action of the Senate. I
think have shown it to be clear that the Sem
ate had not only no constitutional right elect
n President for the occasion during that time
to the exclusion Of the Lieutenant governor
but it should have recognized and received as
it's President the Lieutenant governor. who. by
virtue of his Office, was the President of the
Senate under the Constitution. To hold that
the Senate has the right to reject as its Presi-
dent the Lieutenant governor OF the State,
when he is able to attend and is not
acting Governor, is to put that
body above the Constitution. which its
members are sworn to support. and to set
at defiance the plain and positive commands of
the people expressed by that instrument. If
IL be true, as it doubtless is that the Senate
refused 10 permit the ACKNOWLEDGEMENTS to
act as its President still it does not follow that
the Senate by that act deprived him of his right
70 his salary for 1t is well-settled rule OF law
that the salary is but an incident of the title to
an Office, and not to its occupation exercise
dorsey VS.. Smith, 2s Cal 81; People VS. Nor
ton, Abb. Pr. 359; Strattou ,Oulton, % Cal.
Al; Petit VS.. Rousseau. 10 La. An. 239; People
vs. Tieman. 30 Barb. 1885, Nichols Mclean,
63 How. Pr. 44S; Dolan Va. Mayor, 68 n. Y. 274 |
In 04rralo VS. Siebenthaler 81 Cal. 1913. it is
SAID: The principle that the salary annexed to
public office is incident to the title the Office.
ana not TO It's occupation exercise,
affirmed in Dorsey VS.. Smith % Cal 81 and |
Stratton vs. Oulten, % Cal A The petitioner
having been elected and qualified. and being
ready and willing to enter upon the discharge of |
the duties OF his Office, became entitled to the |
saiary attached 10 the Office and his right 10 the |
salary was unaffected by the fact that a |
usurper discharged the duties of the Office" In
Mayheld VS.. Moore. SO ILL., 42s. it